Wednesday, April 1, 2009

Men falsely accused of rape should not be charged with secretly videotaping the act if the video clears them

Comment: As you read this post, ask yourself this question: should there be a law excusing the secret videotaping a sex act if this video evidence is material in clearing the videotaper of a false rape charge? I think a valid argument can be made in favor of such a law.

In the news story below this comment, 20-year-old William McCurdy, who falsely accused Bruce Barclay, a former Pennsylvania County Commissioner, of rape, has been sentenced to 24 months probation. But not before Barclay was destroyed in the process.

Barclay was cleared of the rape charge but he was charged with wiretapping and other offenses in connection with secretly videotaping his sexual trysts. Barclay resigned his political post and awaits arraignment. As one commentator said: "Sadly, his vindication was his undoing."

Mr. Barclay's criminality cannot be condoned; he is the author of his own undoing. But this case does raise interesting questions.

It is illegal in Pennsylvania, and elsewhere, to videotape or film another person without that person's knowledge and consent while that person is in a state of full or partial nudity.

If Mr. Barclay's only instance of videotaping was the act that McCurdy claimed was rape, it is doubtful -- but not out of the realm of possibility -- that Barclay would have been criminally charged. Given the breadth of Barclay's wrongdoing, the prosecutor had no choice but to charge him.

Which brings us back to the initial question: should there be a law excusing the secret videotaping a sex act if this video evidence is material in exculpating the videographer of a false rape charge?

There are strong public policy justifications for excusing the criminality of videotaping the sex act in that instance, given that we, as a society, should want to nab false rape accusers and the video would be a sure way to do that -- but the man might be afraid to reveal the video's existence if it's illegal. Moreover, the only "victim" of the secret videotaping is the false rape accuser -- but she should not be heard to claim she's a victim of the very thing that disproves her vile lie.

Some will say that such a law would only serve to encourage men to secretly videotape sex acts. I am aware of that. And that is what we have come to -- we are stranded in a culture where men are frequently falsely accused of rape and the sole issue in dispute is consent. Even if they are cleared of the charges, the stigma of the rape claim trails them forever like a ghost. Even with a recantation, many people will always assume they are rapists.

Some men feel that a video record is the only thing that can protect them them from having their lives destroyed by a false claim. It might sound like an overreaction, but I could point out innumerable instances from this very Web site over the past year where a video record of the sex act would have saved young men from the terrible ordeal of a false rape claim. I am not advocating making it legal to secretly videotape a sex act. I am advocating a law stating that no charges may be brought when a video of a sex act is found to exist and is material in clearing a man of a rape claim.

It must be asked, which is worse -- having a consensual sex act secretly videotaped, or allowing a man's life to be destroyed by a false rape claim? The question scarcely survives its statement.

A man who falsely accused former Cumberland County Commissioner Bruce Barclay of rape was sentenced this morning to 24 months' probation.

County Judge Edward E. Guido imposed the sentence three months after William McCurdy, 20, of Mohnton, pleaded guilty to making a false report to state police. Police began investigating Barclay, 49, of Monroe Township, after McCurdy accused Barclay of raping him in March 2008.

Barclay resigned as a county commissioner after the claim was made.

Although the rape claim was false, police later charged Barclay with wiretapping and other charges, accusing Barclay of secretly recording other men having sex in his home. Barclay is to be arraigned on those charges in April.

McCurdy's lawyer, chief public defender Taylor Andrews, said McCurdy made the false claim out of anger and a desire to get out of a "bad situation" regarding his relationship with Barclay.

The prosecutor said McCurdy initially told police he was thinking of trying to extort money from Barclay.

McCurdy told Guido that he regrets what he did and has learned from his mistake. "I want to apologize to everyone who's been hurt by my mistakes, including Mr. Barclay," McCurdy said.He is a prosecution witness in the case against Barclay.